Since 2019, a group of dentists have been engaged in antitrust litigation against Delta Dental Plans and the Delta Dental Plans Association. The plaintiffs sought class certification which would have allowed them to represent over 240,000 dental providers nationwide. On September 22, 2025, a federal court ruled against class certification for the case, and the Seventh Circuit Court of Appeals recently denied a request to appeal the ruling.  

The decision does not address the merits of providers’ individual claims, but the ruling does require providers to file separate lawsuits. The class action certification issue paused the statute of limitations, but the clock is now ticking again. The American Dental Association reported that it cannot provide legal advice to members, but members considering action may wish to consult with an attorney to determine whether to file a claim or contact one of the firms representing plaintiffs in the ongoing litigation. The Georgia Dental Association does not promote or endorse any particular law firm.  

Class Action Lawsuits

The central purpose of class action lawsuits is to improve the “efficiency and economy of litigation.” When many people have suffered the same injury, and when many individual injuries are too small to be worth a lawsuit, class actions provide a means to compensate people who might otherwise go uncompensated. They also promote finality and consistent adjudication.  

A class is a larger group for whom several representatives bring a lawsuit for a shared alleged injury. Class actions may happen in many different arenas. For example, Ticketmaster has experienced a number of class action lawsuits related to hidden fees and antitrust violations. In 2018, a potential 3 million health providers received a $2.8 billion dollar settlement from Blue Cross Blue Shield (BCBS). The settlement also required BCBS to adopt and implement changes that providers contended would spur market competition.  

A class action must meet 4 prerequisites:  

1. Numerosity- generally more than 40 people are required 

2. Commonality- questions of law or fact must be common to the class 

3. Typicality- representatives’ claims must be typical of the claims of the class 

4. Adequacy of representation- the named plaintiffs must show that representative parties will protect the interests of the class 

The class action must also fall into one of the permitted class action categories.  

Why Deny Class Certification? 

The denial of class certification ultimately came down to what providers would be required to prove in the case. By attempting to certify a class defined as, “a nationwide class of the roughly 240,000 dental providers who contracted to participate in Delta Dental’s Premier or PPO networks," the plaintiffs fell afoul of the commonality prerequisite. The judge determined that, “common issues do not predominate,” and that, “plaintiffs' proposed geographic market does not, ‘correspond to the commercial realities of the industry [.]’” In other words, the judge concluded that providers would need to prove injury from the alleged collusion based on local market conditions rather than using a nationwide methodology.  

Antitrust Litigation in Context 

“15 USC 1: Trusts, etc., in restraint of trade illegal; penalty 

§1. Trusts, etc., in restraint of trade illegal; penalty 

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.” 

To understand antitrust litigation, it helps to understand where it comes from. The Sherman Antitrust Act of 1890 was the first federal legislation to outlaw monopolistic practices. It gave the federal government the authority to dissolve trusts which sought to increase profits using anticompetitive practices. Certain agreements between market competitors are considered to be so obviously illegal that they need essentially no analysis: 

1. Price Fixing 

2. Joint Boycotts 

3. Bid Rigging 

4. Dividing Customers 

Other agreements may be considered to be in violation of antitrust law, but they must be analyzed to determine whether commercial benefits outweigh competitive harm. To analyze an agreement, one must have a definition of the market, an understanding of the defendant’s market power, and evidence of anticompetitive effects.  

In seeking class certification, plaintiffs alleged that Delta Dental Plans, composed of 39 member companies, and Delta Dental Plans Association agreed to divide the United States market into discrete territories exclusively accessible to a specific member company, that they coordinated to fix artificially low reimbursement rates, and agreed to restrict output by limiting the revenue member companies could derive from non-Delta Dental branded insurance. Delta argued that their agreements and structure enable them to compete with insurers offering large multi-state dental plans, and they denied that member companies are required to follow established reimbursement rates or have the lowest reimbursement rates in their respective market.  

Ultimately, the judge decided that “Rule of Reason” must be applied rather than the assumption that the agreements in question are so plainly anticompetitive that they must be “illegal per se.” This led to the evaluation of plaintiffs’ ability to use common evidence to show antitrust impact. In turn, the focus of the judge’s decision became analysis of geographic markets and whether conditions across the nation are sufficiently similar, with the final conclusion being that individual and local market issues play an outsize role, especially since Delta’s market share varies substantially between states (10%-95%).  

Notably, a similar case against Blue Cross Blue Shield was recently settled after 12 years of litigation and 9 years of settlement negotiations. Like the case against Delta, plaintiffs raised concerns about exclusive service areas, brand restrictions, and other programs and rules used by the companies to coordinate their activities. Unlike the case against Delta, plaintiffs’ arguments regarding the anticompetitive nature of BCBS’ market practices were more successful. BCBS expressly denied any wrongdoing or liability in the preliminary settlement document.  

The differing outcomes result from differing circumstances. Similar arguments were marshaled, but the chips fell differently. The judge in the BCBS case concluded that the aggregated policies and behaviors of the plans warranted per se analysis with other alleged violations being subject to the Rule of Reason. The case even lasted long enough that BCBS policy changes, eliminating their so-called National Best Efforts rule in conjunction with a settlement with subscribers, altered the standard of review for providers’ Market Allocation Conspiracy claims.  

Georgia’s Dental Insurance Market 

In each case, market share and a company’s capacity to leverage monopsony power, the buyer’s analogue of monopoly power, plays an important role in these cases. Previous entries in this blog have looked at research on dental insurance market consolidation undertaken by ADA’s Health Policy Institute, and they found that Georgia’s market could be considered to be moderately competitive under both pre-Biden era merger analysis guidelines and current guidelines. Under current guidelines, Georgia was only a hair under the Herfindahl-Hirschman Index score for a highly concentrated market, 1780 vs a threshold of 1800, in 2019. Further analysis is required to explore how different companies’ market shares stack up in the Peach State.  

Taking Action 

Advocacy for sensible state policy promoting competitive markets and access to dental care is always ongoing at the Georgia Dental Association. To stay informed, continue to tune into our legislative updates. In these articles, we also like to offer a reminder that the Georgia Dental Association offers many opportunities to get involved in policy advocacy through our contact dentist network, LAW Day, and supporting GDAPAC. Your support makes all the difference.